WASHINGTON (CN) — Former President Donald Trump’s fight against a gag order imposed in his federal election subversion case continued Monday, with a request for an en banc rehearing at the D.C. Circuit Court of Appeals.
The petition comes after a three-judge panel reinstated a narrowed version of the initial order on Dec. 8, which now allows Trump to publicly lambast special counsel Jack Smith, President Joe Biden and the Justice Department while protecting potential witnesses, court staff, prosecutors and their families.
Trump’s request marks the third time he has appealed a decision by U.S. District Judge Tanya Chutkan, the Barack Obama appointee overseeing his criminal case in the lower court.
After his initial appeal of Chutkan’s gag order, Trump then appealed her denial of two motions to dismiss the case altogether over claims of presidential immunity. The challenges are part of Trump’s primary strategy to delay his trial — currently slated to begin March 4, 2024 — beyond the presidential election.
At Smith’s request, the Supreme Court has decided to expedite what would otherwise be a lengthy appellate process, bypassing the D.C. Circuit to consider Trump’s claims of presidential immunity.
During oral arguments before a panel made up of U.S. Circuit Judges Patricia Millet, Cornelia Pillard and Bradley Garcia, Trump’s appellate lawyer John Sauer argued that the gag order wrongly made Chutkan “a filter” between the current GOP front-runner and the American public.
Sauer, of firm James Otis, makes much the same argument in the request for a rehearing. He argues the gag order goes against legal precedent and allows “the government to prohibit candidates from communicating relevant information to voters during an election.”
The fact that Trump is in the midst of a presidential campaign, Sauer argues, makes the gag order unconstitutional and violates Trump’s First Amendment rights to protected political speech.
At oral arguments last month, Sauer claimed his position would be the same even if Trump was not campaigning and said the campaign is another reason the order should be reversed.
The panel, each appointed by Democratic presidents, were willing to accept the need for a looser gag order to ensure Trump could still comment on the public figures involved in his case, like Smith and Biden. But they made it clear Trump cannot comment on the case and those involved as he wishes.
Millet, writing the unanimous opinion of the panel, noted that while the First Amendment does carve out room for “insulting and even outrageous speech,” there are no protections for defamatory, inciting or threatening comments.
“In addition, even protected speech may, and sometimes must, be regulated when necessary to protect a compelling government interest, including the fair administration of a criminal trial,” the Obama appointee wrote.
While Chutkan has yet to deem any of Trump’s speech as violating the gag order — the order has been paused longer than it has been active in the case — his rhetoric has hovered over the case as he regularly rails against Smith, Chutkan and many potential witnesses.
Just a day after appearing in federal court in Washington to plead not guilty to the four charges levied against him by Smith, he posted an apparent threat on his Truth Social account.
“IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Trump posted on Aug. 4.
The next day, Chutkan received a racist death threat to her chambers from a Texas woman who told her “You are in our sights, we want to kill you.”
Prosecutors have pointed to a dynamic where Trump targets his perceived enemies online — in Chutkan’s case regularly accusing her of bias against him — which is then followed by a flood of threats from his supporters.
Sauer specifically addressed the Texas woman’s call, arguing that “watching the news” and “drinking too many beers,” caused her to make the threats, not Trump’s post. Moreover, Sauer contends Trump should not be held responsible for third-party threats.
If the D.C. Circuit decides to rehear the case, Trump will face a majority of judges appointed by Democrats — seven — to four Republican appointees. Three — U.S. Circuit Judges Neomi Rao, Justin Walker and Greg Katsas — are Trump appointees.
With Trump’s presidential immunity claim before the Supreme Court and his gag order challenge back before the D.C. Circuit, Chutkan has temporarily stayed all pretrial deadlines in the case.
She will have to wait on a schedule and ruling from the Supreme Court to resume the case, as a decision in favor of Trump’s immunity claim would upend the case altogether.
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